Supreme Court weighs restitution in child pornography case

Jan. 22, 2014
|

The justices did not think that Doyle Randall Paroline, who possessed two images and was sentenced in 2009 to two years in prison, should be held liable for the full amount. / Karen Bleier, AFP/Getty Images

by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON -- The Supreme Court faced three options Wednesday for extracting restitution from perpetrators of child pornography: Sock them for their victim's full compensation, none of it, or something in between.

The justices didn't like any of those options.

They all wanted "Amy" to be compensated for the estimated $3.4 million cost of her travails, which have made her childhood rape at the hands of her uncle one of the Internet's most popular series of images for traffickers in child pornography.

They did not, however, think that Doyle Randall Paroline, who possessed two images and was sentenced in 2009 to two years in prison, should be held liable for the full amount. And while the federal government called for Paroline and others to pay fair shares for Amy's psychotherapy and other costs, the justices had trouble with the math.

"The woman has undergone serious psychological harm because of her knowledge that there are thousands of people out there viewing her rape," Justice Antonin Scalia said, later adding, "Each person increases the amount of her psychological harm."

Amy, whose real name is not used in court papers, was raped and filmed at ages 8 and 9. It wasn't until she was 17 that she learned the sex acts had gone viral on the Internet. As a result, her lawyers say, she could not finish college, has had trouble holding a job and will require weekly psychotherapy for the rest of her life

Since her images were discovered, federal authorities have identified more then 3,200 cases in which they were downloaded. They have won court orders for restitution totaling more than $1.7 million in 182 cases.

Deputy Solicitor General Michael Dreeben suggested that federal district court judges should decide how much each offender should pay, perhaps based on simple division. So far, he said, each one would be liable for about $18,000.

How, the justices wondered, should the first offender in such a system be treated if the ultimate number of offenders isn't known?

"It doesn't work very well for the first person," Dreeben acknowledged.

The case stems from Congress' passage of the Sexual Exploitation and Other Abuse of Children Act, which established penalties and restitution for sexual assault, domestic violence and child pornography. The law called for full restitution but did not specify who should pay what.

Amy's attorney, Paul Cassell, argued that every offender should be held liable for the entire amount and made to pay what they can until she has been fully compensated. Otherwise, he said, it could take many years to reach the $3.4 million goal for Amy's lifetime costs.

While the justices agreed she deserves the money, they didn't agree that Paroline should be asked to pay it all. "Some limiting principle has to come into play," Justice Stephen Breyer said.

How to estimate Paroline's culpability in dollars and cents, however, proved impossible -- and for good reason. Federal district court judges have come up with widely varying figures -- some of which, Justice Elena Kagan said, appear to have been "plucked out of the air."

"In criminal sentencing, imprecision and estimation is the order of the day," Dreeben said. "A reasonable estimation is better than all or none."